Holkesvig v. Welte, 2011 ND 161

Clark appeals the district court's denial of his motion to correct sentence in four cases arising from multiple offenses and probation revocation proceedings.
He argues the sentences in cases 951 and 1418 merged with those in 2454 and 2075 under §12.1-32-11(1) and were effectively satisfied, and that due process was violated by delay in revocation hearings.
Probation revocation petitions were filed in 2005 for 951/1418 and amended in 2007; warrants issued in 2005–2007; petitions and warrants were served in 2009, and Clark was resentenced in 2009 after revocation.
The district court denied relief in 2010, and this Court affirmed, holding that sentences did not legally merge and that delay did not violate due process.
Clark was imprisoned during most of the revocation proceedings and later returned to North Dakota; the court held merger is the same as concurrent sentencing and that there is discretion to order concurrent or consecutive sentences.
The ultimate holding: no illegal sentences or due process violation; sentences run concurrently as to remaining terms and no credit for time served in unrelated cases is due.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 951/1418 merged with 2454/2075 under §12.1-32-11(1).	Clark contends merger converts to one sentence.	Clark argues merger should have collapsed sentences.	Merger equals concurrency; sentences remain separate but run concurrently.
Whether delay in revocation hearing violated due process.	Clark asserts prejudice from delay.	State exercised discretion; no prejudice shown.	Delay did not violate due process; no prejudice shown.
Whether Clark deserved credit for time served in 2454/2075 in 951/1418.	Credit in one case for time served in another should be allowed.	Not entitled to cross-case credit.	No cross-case credit; time served in separate cases not credited.

State v. Edwards, 2007 ND 113 (ND 2007) (illegality of sentence reviewed; statutory interpretation standard)
State v. Mees, 272 N.W.2d 61 (ND 1978) (merge/concurrent sentencing concept; same-state offenses)
State v. Patten, 353 N.W.2d 26 (ND 1984) (concurrent vs. consecutive sentencing discretion)
State v. Johnson, 1997 ND 235 (ND 1997) (discretion to impose consecutive sentences)
Moody v. Daggett, 429 U.S. 78 (U.S. 1976) (parolee rights; hearing when warrant executed)
Sanchez, 225 F.3d 172 (2d Cir. 2000) (due process considerations for revocation delays; prejudice required)
United States v. Rasmussen, 881 F.2d 395 (7th Cir. 1989) (delay impact on revocation rights; prejudice analysis)
State v. Wardner, 2006 ND 256 (ND 2006) (probation revocation rights; not a stage of prosecution)
Gust v. State, 2006 ND 114 (ND 2006) (credit not afforded across unrelated charges)
State v. Neva, 2009 ND 127 (ND 2009) (credit for time served; backward-looking analysis)
State v. Mees, 272 N.W.2d 61 (ND 1978) (see above)